NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUL 31 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DESHON AARON ATKINS, No. 20-56007

Petitioner-Appellant, D.C. No. 2:18-cv-06877-DOC-MAA v.

W. L. MONTGOMERY, Acting Warden, MEMORANDUM*

Respondent-Appellee.

Appeal from the United States District Court for the Central District of California David O. Carter, District Judge, Presiding

Submitted July 15, 2024** Pasadena, California

Before: PAEZ and SANCHEZ, Circuit Judges, and LYNN,*** Senior District Judge.

Deshon Aaron Atkins appeals the district court’s denial of his petition for a

writ of habeas corpus under 28 U.S.C. § 2254. The certified issue on appeal is

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Barbara M. G. Lynn, Senior United States District Judge for the Northern District of Texas, sitting by designation. whether the magistrate judge exceeded her authority in determining, without the

consent of the parties, that Atkins's August 10, 2018, petition was a mixed petition,

subject to dismissal under Rose v. Lundy, 455 U.S. 509 (1982), which resulted in

the voluntary dismissal of his unexhausted claims. We have jurisdiction to review

the appeal under 28 U.S.C. §§ 1291 and 2253. We affirm.

Atkins was convicted by a jury in California state court of two counts of

attempted murder. After he appealed unsuccessfully to the California Court of

Appeals, on March 28, 2018, the California Supreme Court denied Atkins’s

petition for review.

On August 10, 2018, acting pro se, Atkins filed the underlying Petition for

Writ of Habeas Corpus under 28 U.S.C. § 2254 in the Central District of

California, seeking relief on three grounds: (1) insufficient evidence to support the

jury’s attempted murder finding on Count 4, (2) ineffective assistance of counsel at

trial, and (3) lack of proof for the jury’s finding as to a certain gun enhancement on

hearsay grounds. The Petition expressly noted that “Grounds #2 and #3 were not

presented to the California Supreme Court.”

The case was referred to a magistrate judge for pretrial matters. Before the

government appeared, the magistrate judge issued a minute order stating that “it

appears from the record now before the Court that the instant Petition is subject to

dismissal as a mixed petition because Petitioner has not exhausted his state

2 remedies in regard to Grounds Two and Three.” The minute order further stated

that, before deciding the matter, the magistrate judge would give Atkins an

opportunity to address the exhaustion issue by electing one of four options: (1) file

a notice of withdrawal of his unexhausted claims in Grounds Two and Three, and

proceed solely on his exhausted claim in Ground One; (2) demonstrate that

Grounds Two and Three are, in fact, exhausted; (3) file a notice of voluntary

dismissal of the Petition without prejudice, so as to exhaust all state remedies

before refiling in federal court; and (4) file a motion to hold his current federal

habeas petition in abeyance while he returns to state court to exhaust his state

remedies with respect to his unexhausted claims in Grounds Two and Three. In

response, Atkins withdrew his claims based on Grounds Two and Three. The

magistrate judge subsequently entered a report, recommending that Atkins’s

Petition be denied, which the district court accepted.

A petition filed under § 2254 shall not be granted unless the petitioner has

“exhausted the remedies available in the courts of the State,” and “fairly

present[ed]” the federal claims in state court. 28 U.S.C. § 2254(b)(1)(A); Duncan

v. Henry, 513 U.S. 364, 365 (1995) (per curiam). In Rose v. Lundy, 455 U.S. at

510, 522, the Supreme Court imposed a “total exhaustion” requirement, such that

district courts are required to dismiss without prejudice “mixed” petitions that

contain both exhausted and unexhausted claims.

3 On appeal, Atkins argues that, in deciding the exhaustion issue and issuing

the “option order” offering Atkins various choices as a result, the magistrate judge

exceeded her authority. The authority of magistrate judges “is a question of law

subject to de novo review.” Bastidas v. Chappell, 791 F.3d 1155, 1159 (9th Cir.

2015) (quoting United States v. Carr, 18 F.3d 738, 740 (9th Cir. 1994)).

The power of federal magistrate judges is limited by 28 U.S.C. § 636. See

Mitchell v. Valenzuela, 791 F.3d 1166, 1168 (9th Cir. 2015). Under § 636, a

district judge “may designate a magistrate judge to hear and determine any pretrial

matter pending before the court,” except for certain motions enumerated under

§ 636(b)(1)(A) and other analogous dispositive judicial functions. 28 U.S.C.

§ 636(b)(1)(A); Flam v. Flam, 788 F.3d 1043, 1046 (9th Cir. 2015). To determine

whether a motion is dispositive, we employ a “functional approach,” which looks

“to the effect of the motion, in order to determine whether it is properly

characterized as ‘dispositive or non-dispositive of a claim or defense of a party.’”

Flam, 788 F.3d at 1046 (quoting United States v. Rivera–Guerrero, 377 F.3d 1064,

1068 (9th Cir. 2004)).

District courts are permitted to sua sponte consider threshold constraints on

federal habeas petitioners, including claim exhaustion. See Day v. McDonough,

547 U.S. 198 (2006). Moreover, preliminarily identifying a claim as

“unexhausted” is not a dispositive matter, particularly where Atkins stated in the

4 Petition that two of his claims were not raised below. Thus, because the magistrate

judge gave Atkins fair notice and an opportunity to respond to her finding that the

Petition was mixed, the magistrate judge did not exceed her authority by sua

sponte evaluating the Petition and making a preliminary determination that

Grounds Two and Three were unexhausted.

In addition, the magistrate judge’s options order, which offered Atkins

choices in response to her preliminary determination that the Petition was mixed,

did not constitute a dispositive order under § 636(b)(1)(B) such that the magistrate

judge was unauthorized to issue it. The options order did not dispose of a claim or

defense of a party, or preclude the ultimate relief sought. See Flam, 788 F.3d at

1046. Instead, the order offered options that would have preserved the viability of

Atkins’s unexhausted claims, including inviting Atkins to demonstrate exhaustion

or seek a stay to be able to return to state court and perfect exhaustion. The

inclusion of these non-dispositive options distinguishes this case from this

Circuit’s precedent in Hunt v. Pliler, 384 F.3d 1118, 1124 (9th Cir. 2004), in which

both options presented to the petition in that case required the dismissal of at least

some claims.

Atkins further argues the magistrate judge failed to provide meaningful

assistance in exhausting his claims and should have done more to take his pro se

status into account. Under Pliler v. Ford, 542 U.S. 225, 231 (2004), “[d]istrict

5 judges have no obligation to act as counsel or paralegal to pro se litigants.” As

such, the magistrate judge was under no obligation to provide additional guidance

or instruction to Atkins on account of his pro se status, and was not required to

take into account the amount of time remaining on Atkins’s one-year statute of

limitations in requiring a response to her order.

AFFIRMED.

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